Suit By Expelled Howard Law Student Survives In Part

The United States District Court for the District of Columbia (Judge McFadden) dismissed some, but not all, claims brought by an expelled law student against his former school

Howard University School of Law expelled Michael Newman. It claims that it did so because he repeatedly sent disruptive emails to his classmates against school policy. Newman tells a different story. He claims that his expulsion was the culmination of two years of racist vitriol and abuse that he suffered at the hands of Howard students and administrators. So Newman sued, bringing claims under local and federal antidiscrimination law. And he also raised various claims under D.C. tort and contract law. Howard now moves to dismiss Newman’s Complaint. The Court will do so, but only in part.

In short, the Court dismisses most of Newman’s antidiscrimination claims for failure to adequately plead the existence of a material adverse action caused by his race. And it will dismiss most of his contract-based claims for want of a binding contract. Last, it will dismiss most of his remaining tort claims. That said, several of Newman’s claims survive: all those directed against unnamed third parties, and several adequately pleaded claims directed against Howard and its employees.

Plaintiff is a white male who attended Howard in part on a merit scholarship.

Newman’s experience at Howard was turbulent from the start. Shortly after starting law school, Newman attended a symposium with his classmates. At the symposium, a black speaker stated that “if Biden and Harris won the White House, they would usher in a ‘golden age of environmental justice.’” Compl. ¶ 12. In response, Newman posted in a group chat with his classmates, “Where I part with the black community is where they believe government solves problems, I only see it causing problems.” Id. He likewise asked whether “black voters didn’t question turning to government for solutions” and whether black individuals “reliably voting for the same party . . . disincentivized both parties from responding to the needs of black communities.” Id. These messages began what would ultimately devolve into a years-long conflict between Newman and his classmates and university administrators.

His interactions with classmates and administrators are set out in the opinion

Newman’s first year at Howard did not go well. His classmates referred to him with a slew of racial epithets. These included “mayo king” (or “king mayo”), Compl. ¶ 28; “the White Panther,” id. ¶ 37, based on a popular Marvel character, the Black Panther; “keebler [sic] cookie,” id. ¶ 38; and “snow possum,” id. After his first year of law school, Newman found himself in the bottom half of his class, jeopardizing his scholarship. Id. ¶ 41; Scholarship Agreement at 2.

In the fall of 2021, at the start of his 2L year, Newman “filed a formal complaint of racial discrimination with the University,” based on his exclusion from a student-run group chat. Compl. ¶¶ 44–45. The university hired an outside attorney to investigate his complaint. Id. ¶ 45. But after an investigation that included interviews with Newman, the investigator concluded that his claims of discrimination could not be substantiated. Id.

The school contended that he continued to run afoul of school e-mail policies

[Dean Danielle] Holley and Newman filed administrative charges against one another on January 31. Compl. ¶ 53. Holley complained that Newman had continually harassed his classmates and disturbed the law school’s learning environment. Id. Newman, for his part, alleged that Holley had misused university procedure in an effort to “intimidate [him] from expressing information and views she disfavors” and to “control what information or opinions are shared among classmates.” Id.

A panel was convened

Several weeks later, the panel declared Newman “responsible” without explanation. Compl. ¶ 64. “The Notice consisted solely of boilerplate with Newman’s name and the word ‘Responsible’ pasted in.” Id. Newman appealed this decision, and the university vacated the panel’s decision on the ground that [Director of Student Conduct & Community Standards] Lanier-Smith had improperly denied Newman an opportunity to cross-examine Holley. Id. ¶¶ 69, 71. The university then reassembled the same panel, and Newman sat for another hearing. Id. ¶ 71. The panel again found him responsible and recommended expulsion; this time the university obliged. Id. ¶¶ 77–79.

Newman now alleges various violations of state and federal law sounding in contract, antidiscrimination law, and tort. Howard has since moved to dismiss on behalf of itself and its officers. And Newman, in turn, has filed a bevy of motions—to expedite, and for leave to file surreplies. The parties’ motions are ripe for decision.

Breach of contract claim

The Code of Conduct is not a bargained-for “exchange of promises.” Eastbanc, 940 A.2d at 1003. No portion of the Code of Conduct indicates that the rights it describes are contingent upon or in exchange for compliance with the rules. Rather, the Code of Conduct identifies various rights that students have and lists them alongside students’ obligations. Howard Univ. Student Code of Conduct (Code of Conduct) at 3–5, ECF No. 21-1 pp. 182–84. But nothing in the Code of Conduct suggests that these rights and obligations are reciprocally contingent…

Although that breach was paired with a breach of Newman’s own, Compl. ¶ 41, Newman plausibly alleges that his nonperformance of the academic qualification requirements was caused by Howard’s misconduct. Id. ¶ 165; see also Opp’n at 18–19. He alleges that professors adjusted their grading systems to disfavor him, id. at 18, that administrators “devised a ranking scheme in such a manner as to ensure [he] fell into the bottom half of the class,” id. at 19, and that they used subjective participation grades to translate his peers’ biases into poor grades, id. He has thus plausibly alleged that Defendants’ conduct is what prevented his performance, bringing his claims within the ambit of the prevention doctrine. Estate of Drake, 4 A.3d at 454. So he states a valid claim for breach of contract.

Discrimination claims

Start with Title VI. Newman fails to plausibly allege that he faced disparate treatment by Howard on account of his race. In order to do so, he would need to plead that he was treated differently from similarly situated law students of another race, and that such treatment was because of his race. See Nanko Shipping, USA v. Alcoa, Inc., 850 F.3d 461, 467 (D.C. Cir. 2017). He has not done so. In particular, he has failed to allege that he was similarly situated to other students who were treated differently.

The court also dismissed hostile educational environment and retaliation claims.

having one’s “raised hand” lowered on a Zoom town hall is not the kind of consequence likely to dissuade one from reporting discrimination. To be clear, Newman does not complain about the law school holding a town hall to discuss him in the first place. Compl. ¶¶ 95–99. Instead, he only challenges Holley “attempting to prevent his participation there.” Id. ¶ 95. But that is not a materially adverse action. And that is all the more true because Newman was allowed to speak at the town hall, though toward the end.

Defamation

The Court…dismisses all of Newman’s defamation claims except those pertaining to Holley’s description of Newman’s email about his classmate’s death as “defamatory” and Holley’s claim that Newman said “African-Americans suffer from hive mind.”

Bottom line

To recap where things stand: All of Newman’s claims against unidentified third parties remain live. As for his claims against Howard and its employees, most have been dismissed. Each of his Title VI, D.C. Human Rights Act, conspiracy against rights, intentional infliction of emotional distress, and promissory estoppel claims against Howard and its employees are dismissed in full. And his breach of contract claim is dismissed, except as to the scholarship agreement, while his defamation claim is dismissed except as to the “defamatory” and “hive mind” comments. Last, Newman’s § 1981 and breach of implied covenant of good faith and fair dealing claims against Howard and its employees survive in full.

NBC News reported on the lawsuit. (Mike Frisch)